San Luis & Delta-Mendota Water Auth. v. United States

• Decision Date: 02 March 2012
• Docket Number: No. 09–17594.,09–17594.
• Citation: 672 F.3d 676,2012 Daily Journal D.A.R. 2900,12 Cal. Daily Op. Serv. 2570
• Parties: SAN LUIS & DELTA–MENDOTA WATER AUTHORITY; Westlands Water District, Plaintiffs–Appellants,andPixley Irrigation District; Lower Tule River Irrigation District; Tri–Valley Water District; Hills Valley Irrigation District; Kern Tulare Water District; Rag Gulch Water District; Stockton East Water District; Fresno County; Tulare County, Plaintiffs–Intervenors,andBay Institute of San Francisco; Save San Francisco Bay Association; Environmental Defense Fund; Natural Resources Defense Council; Pacific Coast Federation of Fishermen's Associations; Institute for Fisheries Resources; United Anglers of California, Plaintiffs–Appellees, v. UNITED STATES of America, Department of the Interior, Bureau of Reclamation; Ken Salazar, Secretary of the Interior; Robyn Thorson, Regional Director of the United States Department of the Interior Fish and Wildlife Service, Region 1; Donald Glaser, Regional Director, United States Department of the Interior Bureau of Reclamation, Mid–Pacific Region, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 2570

2012 Daily Journal D.A.R. 2900

672 F.3d 676

SAN LUIS & DELTA–MENDOTA WATER AUTHORITY; Westlands Water District, Plaintiffs–Appellants,andPixley Irrigation District; Lower Tule River Irrigation District; Tri–Valley Water District; Hills Valley Irrigation District; Kern Tulare Water District; Rag Gulch Water District; Stockton East Water District; Fresno County; Tulare County, Plaintiffs–Intervenors,andBay Institute of San Francisco; Save San Francisco Bay Association; Environmental Defense Fund; Natural Resources Defense Council; Pacific Coast Federation of Fishermen's Associations; Institute for Fisheries Resources; United Anglers of California, Plaintiffs–Appellees,

v.UNITED STATES of America, Department of the Interior, Bureau of Reclamation; Ken Salazar, Secretary of the Interior; Robyn Thorson, Regional Director of the United States Department of the Interior Fish and Wildlife Service, Region 1; Donald Glaser, Regional Director, United States Department of the Interior Bureau of Reclamation, Mid–Pacific Region, Defendants–Appellees.

No. 09–17594.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 15, 2011.Filed March 2, 2012.

Thomas W. Birmingham, Fresno, CA; and Daniel J. O'Hanlon and Andrew P. Tauriainen, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, CA, for the plaintiffs-appellants.

Cynthia L. Koehler, Environmental Defense Fund, San Francisco, CA; and Paul A. Peters, Hines & Thomas, San Francisco, CA; and Katherine S. Poole and Jason Malinsky, Natural Resources Defense Counsel, San Francisco, CA, for the plaintiffs-appellees.

Kevin Tanaka, Department of the Interior, Office of Regional Solicitor, Sacramento, CA; and Ignacia S. Moreno, Assistant Attorney General, Environmental & Natural Resources Division, and Charles Shockey, Andrew C. Mergen and David S. Shilton, Department of Justice, Washington, D.C., for the defendants-appellees.Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, United States District Judge, Presiding. D.C. No. CV 97–06140–OWW.Before: WILLIAM A. FLETCHER and MILAN D. SMITH, JR., Circuit Judges, and GEORGE H. WU, District Judge.^*Opinion by Judge WU; Partial Concurrence and Partial Dissent by Judge MILAN D. SMITH, JR.

OPINION

WU, District Judge:

“One of the most contentious issues in the western United States is the management of water resources.” Westlands Water Dist. v. U.S. Dep't of Interior, 337 F.3d 1092, 1100 (9th Cir.2003) (“ Westlands Water Dist. I ”).

This appeal arises from a long-running conflict which has devolved to the present remaining dispute as to the classification of approximately 9,000 acre feet (“AF”) of water released between June 17 through 24 of 2004 from the Nimbus and New Melones reservoirs (“latter June 2004 releases”) within California's Central Valley Project (the “CVP” or “Project”) by Defendant–Appellee United States Department of the Interior (“Interior”), acting through the United States Bureau of Reclamation (the “Bureau”) (collectively, “Federal Defendants” or “Federal Appellees”). Plaintiff–Appellants San Luis & Delta–Mendota Water Authority (“San Luis”) and Westlands Water District (“Westlands”) (collectively, “Water Agencies” or “Appellants”) contend that Interior abused its discretion in failing to apply the latter June 2004 releases against the 800,000 AF of CVP yield especially designated for fish, wildlife, and habitat restoration under section 3406(b)(2) of the Central Valley Project Improvement Act (“CVPIA”), Pub.L. No. 102–575, 106 Stat. 4600, 4715–16 (1992) (“section (b)(2)” or “(b)(2)”).

We have jurisdiction pursuant to 28 U.S.C. § 1291. Because we find that the Water Agencies have standing and the accounting which Interior conducted for the latter June 2004 releases did not constitute an abuse of discretion, we AFFIRM the district court's orders granting summary judgment in favor of the Federal Appellees and against Appellants.¹

BACKGROUND

A. The Central Valley Project

The CVP is the nation's largest federal water management project. Central Delta Water Agency v. Bureau of Reclamation, 452 F.3d 1021, 1023 (9th Cir.2006) (“ Central Delta II ”); Orff v. United States, 358 F.3d 1137, 1141 (9th Cir.2004). The Central Valley of California extends 450 miles south beginning at the Sacramento Valley, which contains the Sacramento River and its tributaries, and is 100 miles wide on average. Dugan v. Rank, 372 U.S. 609, 612, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). The Sacramento River runs southward from the Valley's northern edge, through the City of Sacramento, and then onward to the San Francisco Bay and into the Pacific Ocean. Id. The southern portion of the Central Valley includes the San Joaquin River, which runs from the Sierra Nevada northeast of Fresno, west to Mendota, and then northwest to join the Sacramento River at the Sacramento–San Joaquin Delta. Id. The San Francisco Bay/Sacramento–San Joaquin River Delta Estuary (“Bay–Delta”) lies at the convergence of the Sacramento, San Joaquin, and other rivers, and forms the centerpiece of a massive and fragile ecosystem.

One of the initial goals of the CVP was to provide for the transportation of “surplus” waters within the Sacramento Valley to the San Joaquin River and to permit “the waters of the latter river to be diverted to new areas for irrigation and other needs.” ² Id. “To accomplish the project's purposes, CVP's construction includes a series of many dams, reservoirs, hydropower generating stations, canals, electrical transmission lines, and other infrastructure.” Westlands Water Dist. I, 337 F.3d at 1095–96(citing United States v. Gerlach Live Stock Co., 339 U.S. 725, 733, 70 S.Ct. 955, 94 L.Ed. 1231 (1950)). The 22 reservoirs within the CVP have a total capacity of approximately 11 million AF, of which 7 million AF is released in an average year. See California Department of Water Resources, California State Water Project and the Central Valley Project, http:// www. water. ca. gov/ swp/ cvp. cfm (“ CDWR Website”) (last visited January 30, 2012). “The CVP supplies two hundred water districts, providing water for about thirty million people, irrigating California's most productive agricultural region and generating electricity at nine powerplants.” Westlands Water Dist. v. U.S. Dep't of Interior, 376 F.3d 853, 861 (9th Cir.2004).

The CVP is operated by the Bureau. Westlands Water Dist. I, 337 F.3d at 1096. The Bureau's control of the CVP water is subject to a plethora of federal statutes and regulations governing many areas including, but not limited to: (1) the release of the CVP yield ( see, e.g., section 3406 of the CVPIA), (2) water quality ( see, e.g., the Clean Water Act, 33 U.S.C. § 1321), and (3) the impact of the releases on the environment and wildlife ( see, e.g., San Luis & Delta–Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1171 (9th Cir.2011)) (“The ‘no-jeopardy’ provision in [the Endangered Species Act, 16 U.S.C. § 1536(a)(2) ] requires an agency to ensure that any action it takes ‘is not likely to jeopardize the continued existence of any endangered or threatened species.’ [footnote omitted.]”). Additionally, the Bureau has entered into over 250 long-term contracts for the delivery of CVP water to various agricultural, industrial, and commercial entities in addition to municipal water agencies. See State Water Res. Control Bd. Cases, 136 Cal.App.4th 674, 692, 39 Cal.Rptr.3d 189 (2006).

Also within the Central Valley is the California State Water Project (“SWP”), which includes storage facilities/reservoirs (holding 5.8 million AF of water and annually delivering an average of 3 million AF), hydroelectric power plants, and about 700 miles of open canals and pipelines. See CDWR Website. The SWP is the largest state-built water project in the country and is managed by the California Department of Water Resources (“CDWR”). Pac. Coast Fed'n of Fishermen's Ass'ns v. Gutierrez, 606 F.Supp.2d 1122, 1128 (E.D.Cal.2008). The CVP and SWP share certain facilities and, for over thirty years, have operated in an increasingly coordinated manner pursuant to various agreements between the Bureau and the CDWR.³ Id.; see also Natural Res. Def. Council v. Kempthorne, 506 F.Supp.2d 322, 330 (E.D.Cal.2007).

As described in State Water Res. Control Bd., 182 Cal.App.3d at 97, 227 Cal.Rptr. 161:

The [Sacramento–San Joaquin] Delta serves as a conduit for the transfer of water by the statewide water projects. Both the CVP and the SWP divert water from the rivers that flow into the Delta and store the water in reservoirs. Quantities of this stored water are periodically released into the Delta. Pumps situated at the southern edge of the Delta eventually lift the water into canals for transport south to the farmers of the Central Valley and the municipalities of Southern California. Water which is neither stored nor exported south passes through the Delta where it is used by local farmers, industries and municipalities. The excess flows out into the San Francisco Bay.

The construction and operation of the CVP, along with other stressors, has had a devastating effect upon California's native fish populations, including, in particular, its native salmon. See In re Bay–Delta Programmatic Envtl. Impact Report Coordinated Proceedings, 43 Cal.4th at 1156, 77 Cal.Rptr.3d 578, 184 P.3d 709. Anadromous fish, such as salmon, are particularly sensitive to changes in flow patterns, salinity, temperature and other conditions in and upstream of the Bay–Delta estuary. See generally Pac. Coast Fed'n of Fishermen's Ass'ns v. Gutierrez, 606 F.Supp.2d 1195, 1218–23 (E.D.Cal.2008). Most of California's salmon face serious risk of extinction.⁴ Id. at 1250–53.

B. The CVPIA

The CVPIA, enacted by Congress in 1992, amended the CVP's authorizing legislation and elevated “mitigation, protection, and restoration of fish and wildlife” to Project purposes on par with irrigation. See CVPIA § 3406(...